Citation Nr: 1047732
Decision Date: 12/23/10 Archive Date: 12/30/10
DOCKET NO. 07-10 708 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for prostate cancer to
include as secondary to service-connected removal of the left
testicle with epididymectomy.
2. Entitlement to service connection for erectile dysfunction
(ED) to include as secondary to service-connected removal of the
left testicle with epididymectomy.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Bruce, Associate Counsel
INTRODUCTION
The Veteran had active service from October 1943 to June 1946 and
from August 1946 to July 1948.
This matter comes to the Board of Veterans' Appeals (Board) on
appeal from an October 2005 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The issue of entitlement to service connection for erectile
dysfunction (ED) to include as secondary to service-connected
removal of the left testicle with epididymectomy is addressed in
the REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
The competent evidence fails to demonstrate that the Veteran's
prostate cancer is related to active duty service or directly
caused by or chronically worsened by his service-connected
removal of the left testicle with epididymectomy.
CONCLUSION OF LAW
Prostate cancer, was not incurred in or aggravated by active duty
service, may not be presumed to have been so incurred or
aggravated, and is not proximately due to or the result of a
service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309,
3.310 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA's Duties to Notify and Assist
Under the Veterans Claims Assistance Act (VCAA), when VA receives
a complete or substantially complete application for benefits, it
must notify the claimant of (1) the information and evidence not
of record that is necessary to substantiate a claim, (2) which
information and evidence VA will obtain, and (3) which
information and evidence the claimant is expected to provide. 38
U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2010); see
also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38
C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18
Vet. App. 112, 120-21 (2004) (Pelegrini II).
After careful review of the claims file, the Board finds that the
letter dated in July 2005 fully satisfied the duty to notify
provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1)
(2010); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In
this regard, this letter advised the Veteran what information and
evidence was needed to substantiate the claim decided herein.
This letter also requested that the Veteran provide enough
information for the RO to request records from any sources of
information and evidence identified by the Veteran, as well as
what information and evidence would be obtained by VA, namely,
records like medical records, employment records, and records
from other Federal agencies.
The Board observes that the July 2005 letter was sent to the
Veteran prior to the October 2005 rating decision. The VCAA
notice with respect to the elements addressed in this letter was
therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112
(2004). In this regard, the notice provided in the July 2005
letter complied with the requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) (2010).
On March 3, 2006, during the pendency of the appeal, the Court
issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484
(2006), which held that the VCAA notice must include notice that
a disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Although no such notice was provided to the Veteran, the Board
has concluded that the preponderance of the evidence is against
the Veteran's claim. Therefore, any questions as to the
appropriate disability rating or effective date to be assigned
have been rendered moot.
Therefore the Board concludes that the requirements of the notice
provisions of the VCAA have been met, and there is no outstanding
duty to inform the Veteran that any additional information or
evidence is needed.
The Board finds that VA has also fulfilled its duty to assist the
Veteran in making reasonable efforts to identify and obtain
relevant records in support of the Veteran's claims and providing
a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159(c)(4)(i) (2010). In this regard, the Veteran's service
treatment records, VA treatment records, and private treatment
records are associated with the claims folder.
The Board recognizes a duty to provide a VA examination when the
record lacks evidence to decide the Veteran's claim and there is
evidence of (1) a current disability, (2) an in-service event,
injury, or disease, and (3) some indication that the claimed
disability may be associated with the established event, injury,
or disease. 38 C.F.R. § 3.159(c)(4)(i) (2010); see also McLendon
v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a
VA examination in December 2006, to include a nexus opinion. 38
C.F.R. § 3.159(c) (4). To that end, when VA undertakes to
provide a VA examination or obtain a VA opinion, it must ensure
that the examination or opinion is adequate. Barr v. Nicholson,
21 Vet. App. 303, 312 (2007). The Board finds that, with respect
to the issue of entitlement to service connection for prostate
cancer, to include as secondary to service-connected removal of
the left testicle with epididymectomy, the VA opinion obtained in
this case is more than adequate, as it is predicated on a full
reading of the private and VA medical records in the Veteran's
claims file. In this regard the December 2006 VA examiner
considered all of the pertinent evidence of record and the
statements of the Veteran, and provided a complete rationale for
the opinion stated, relying on and citing to the records
reviewed. Accordingly, the Board finds that VA's duty to assist
with respect to obtaining a VA examination or opinion with
respect to the issue on appeal has been met. 38 C.F.R. §
3.159(c) (4) (2010).
Under the circumstances of this case, "the record has been fully
developed," and "it is difficult to discern what additional
guidance VA could have provided to the Veteran regarding what
further evidence he should submit to substantiate his claim."
Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore,
the Board is satisfied that VA has complied with the duty to
assist requirements of the VCAA and the implementing regulations
and the record is ready for appellate review.
Analysis
Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010).
As a general matter, service connection for a disability on the
basis of the merits of such a claim requires (1) the existence of
a current disability; (2) the existence of the disease or injury
in service, and; (3) a relationship or nexus between the current
disability and any injury or disease during service. Cuevas v.
Principi, 3 Vet. App. 542 (1992). That an injury occurred in
service alone is not enough; there must be chronic disability
resulting from that injury. If there is no showing of a
resulting chronic condition during service, then a showing of
continuity of symptomatology after service is required to support
a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). Service
connection may also be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in service.
38 C.F.R.
§ 3.303(d) (2010).
Where a veteran served 90 days or more during a period of war or
after December 31, 1946, and malignant tumors become manifest to
a degree of 10 percent within 1 year from date of termination of
such service, such disease shall be presumed to have been
incurred in or aggravated by service, even though there is no
evidence of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R.
§§ 3.307, 3.309 (2010).
For secondary service connection, it must be shown that the
disability for which the claim is made is proximately due to or
the result of a service-connected disease or injury or that a
service-connected disease or injury has chronically worsened the
disability for which service connection is sought. 38 C.F.R. §
3.310(a) (2010); Allen v. Brown, 7 Vet. App. 439 (1995) (en
banc).
The Veteran claims that his prostate cancer should receive
secondary service connection to his service-connected removal of
the left testicle with epididymectomy. As such, it is necessary
to determine if this disorder was incurred in active duty service
and/or proximately caused by or chronically worsened by the
Veteran's service-connected removal of the left testicle with
epididymectomy.
Initially, the Board notes that the Veteran's service treatment
records indicate that the Veteran was treated multiple times for
epididymitis while on active duty, which subsequent to active
duty service, led to a left orchiectomy in July 1956. Indeed the
Veteran's July 1948 separation examination noted that the Veteran
had been treated in September 1946 and March 1948 for
epididymitis. The Veteran's service treatment records do not,
however, contain any reference to, nor does the Veteran contend
that he suffered from, prostate cancer while on active duty. In
this regard, the Veteran's August 1943 entrance examination, as
well as his initial June 1946 separation examination, lists the
Veteran's genito-urinary system as normal. The Veteran's August
1946 re-enlistment examination report also lists the Veteran's
genito-urinary system as normal. There is no indication that the
Veteran was diagnosed with prostate cancer while on active duty
or within one year of service. Further, to the extent that the
Veteran asserts that his prostate cancer is due to an inservice
incident in which, as Navy cook, he slipped on the floor and
impaled himself on a frying pan injuring his groin and resulting
in the subsequent removal of his testicle, the Board notes that
service treatment records note no such incident and instead
indicate essentially the idiopathic onset of epididymitis. As
such, the Board finds that there is no evidence of an in-service
event or injury with regard to any diagnosis of prostate cancer.
The Board acknowledges that the Veteran was diagnosed with
prostate carcinoma, Gleason's 6, in December 2002. As such the
Board finds that the Veteran has a current disability of prostate
cancer as required by 38 C.F.R. § 3.303(a) (2010).
While the Board notes that the Veteran does have a current
disability, there is no competent and credible evidence that the
Veteran's current disability is related to his active duty
service as there is no in-service event or injury associated with
prostate cancer and there is no competent and credible evidence
continuity of symptomatology. In this respect, the Veteran's
first post-service diagnosis of prostate cancer was by a private
doctor in 2002 when the Veteran was diagnosed with prostate
carcinoma, Gleason's 6. The Board acknowledges that lay evidence
concerning continuity of symptoms after service, if credible, is
ultimately competent, regardless of the lack of contemporaneous
medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331,
1335 (Fed. Cir. 2006). In adjudicating his claims, the Board
must evaluate the Veteran's credibility. See Washington v.
Nicholson, 19 Vet. App. 362, 368- 69 (2005). In rendering a
decision on appeal, the Board must analyze the credibility and
probative value of the evidence, account for the evidence which
it finds to be persuasive or unpersuasive, and provide the
reasons for its rejection of any material evidence favorable to
the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40
(1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.
Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6
Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2
Vet. App. 24, 25 (1991) ("although interest may affect the
credibility of testimony, it does not affect competency to
testify"). While the Board acknowledges that the Veteran is
competent to provide evidence of his own experiences, the fact
that the Veteran's treatment records do not reflect a diagnosis
of prostate cancer for decades after service weighs heavily
against any assertion that prostate cancer or symptomatology
related thereto have existed ever since service. The Board is
not holding that corroboration is required. Rather, the Board
finds any assertions in this regard to be less credible than the
negative contemporaneous records. The Board notes that symptoms,
not treatment, are the essence of any evidence of continuity of
symptomatology. However, with respect to a merits review, the
lack of evidence of treatment may bear on the credibility of the
evidence of continuity. As such, the Board finds that the
probative evidence is against the claim based on continuity of
symptomatology. See Maxson v. West, 12 Vet. App. 453, 459
(1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333
(Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74
(1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358
(Fed. Cir. 2002) (lengthy period of absence of medical complaints
for condition can be considered as a factor in resolving claim);
see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991)
(affirming Board's denial of service connection where veteran
failed to account for lengthy time period between service and
initial symptoms of disability). Thus, to the extent that the
Veteran's statements suggest any continuity of symptomatology,
any assertion in this regard is not found to be credible in light
of the absence of a medical evidence of symptoms of prostate
cancer for decades after service. See 38 C.F.R. § 3.303(b)
(2010). As noted above, the evidence of record shows the
Veteran's initial post-service diagnosis of prostate cancer was
in December 2002, fifty-four years after separation from service.
This gap in the evidentiary record preponderates strongly against
this claim on the basis of continuity of symptomatology. See
Mense, supra. This absence of contemporaneous evidence
constitutes negative evidence tending to disprove the claim that
the Veteran had an injury in service which resulted in chronic
disability or persistent symptoms thereafter. See Forshey,
supra, (noting that the definition of evidence encompasses
"negative evidence" which tends to disprove the existence of an
alleged fact); see also 38 C.F.R. § 3.102 (2010) (noting that
reasonable doubt exists because of an approximate balance of
positive and "negative" evidence).
With regard to the issue of secondary service connection, during
the pendency of this claim, 38 C.F.R. § 3.310 was amended,
effective October 10, 2006. The intent of the amendment is to
conform to the regulation in Allen v. Brown, 7 Vet. App. 439
(1995), the Court decision that clarified the circumstances under
which a Veteran may be compensated for an increase in the
severity of an otherwise nonservice-connected condition caused by
aggravation from a service-connected condition. See 71 Fed. Reg.
52,744 (September 7, 2006). In this regard, 38 C.F.R. § 3.310
was changed to note that aggravation will not be conceded unless
the baseline level of severity, of the non- service connected
disability, is established by medical evidence. The level of
aggravation will be determined by deducting the baseline level of
severity, as well as any increase in severity due to the natural
progress of the disease, from the current level.
Prior to this amendment, secondary service connection was
warranted for a disability when the evidence demonstrates that
the disability for which the claim is made is proximately due to
or the result of a service-connected disease or injury or that a
service-connected disease or injury has chronically worsened the
disability for which service connection is sought. 38 C.F.R. §
3.310(a) (2006); Allen v. Brown, 7 Vet. App. 439 (1995) (en
banc). The amendments to this section are not liberalizing.
Therefore, because the Veteran's original claim of entitlement to
service connection for prostate cancer, to include as secondary
to service-connected removal of the left testicle with
epididymectomy, was received in June 2005, the Board will apply
the former version of the regulation.
The Veteran was afforded a VA examination in December 2006. The
VA examiner noted that the Veteran was treated during active
service for left epididymitis and subsequently, in July 1956, had
a left orchiectomy due to chronic left epididymitis. As noted
above, the Veteran was diagnosed with adenocarcinoma of the
prostate in December 2002 and as a result underwent 66 external
beam radiation therapy during 2003, but did not receive
chemotherapy, nor did he have a radical prostatectomy. The
Veteran was additionally treated with Lupron hormonal injections
until August 2004. Residuals of the Veteran's radiation
treatment include incontinence of urination and minimal
hesitancy, but the Veteran does not have dysuria, hematuria, or
frequent urinary tract infections. Upon examination the Veteran
was diagnosed with adenocarcinoma of the prostate, status post
external beam radiation therapy with no recurrence of prostate
cancer as per current examination. In consideration of the
examination and after reviewing the Veteran's records, the
examiner opined that the Veteran's prostate cancer is not likely
related to his service-connected left epididymitis and left
orchiectomy. As such the Board notes that the examiner provided
a negative nexus opinion with regard to the issue of service
connection for prostate cancer to include as secondary to
service-connected removal of the left testicle with
epididymectomy.
Finally, the Board notes the Veteran's statements that he has
prostate cancer that is related to his active duty service or
service-connected removal of the left testicle with
epididymectomy, and while the Veteran as a lay person is
competent to provide evidence regarding any symptomatology, he is
not competent to provide evidence regarding diagnosis, including
the severity of a disease or disorder, or etiology. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Lay statements may be
competent to support a claim for service connection by supporting
the occurrence of lay-observable events or the presence of
disability or symptoms of disability subject to lay observation.
38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan
v. Nicholson, supra (addressing lay evidence as potentially
competent to support presence of disability even where not
corroborated by contemporaneous medical evidence). However, the
possibility of a causal relationship between one disability and
another requires specialized training for a determination as to
diagnosis and causation, and is therefore not susceptible of lay
opinions on etiology. Only a medical professional can provide
evidence of a diagnosis or etiology of a disease or disorder.
Thus, the Veteran's statements are afforded no probative value
with respect to the medical question of whether his prostate
cancer is related to his service-connected removal of the left
testicle with epididymectomy, nor are they probative with respect
to the question of his prostate cancer being etiologically
related to his active duty service.
Under the above circumstances, the Board finds that a
preponderance of the evidence is against the Veteran's claim of
direct and secondary service connection for prostate cancer. In
this regard, initially, there is no evidence of an in-service
event or injury with respect to the Veteran's claim. Finally,
there is no probative evidence linking the Veteran's prostate
cancer with either his active duty service or his service-
connected removal of the left testicle with epididymectomy. The
Board has considered the benefit of the doubt rule; however, as a
preponderance of the evidence is against this claim such rule
does not apply and the claim must be denied. 38 U.S.C.A.
§5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990).
ORDER
Entitlement to service connection for prostate cancer, to include
as secondary to service-connected removal of the left testicle
with epididymectomy is denied.
REMAND
After review of the record, the Board finds that a remand for
further development is warranted with respect to the issue of
entitlement to service connection for erectile dysfunction to
include as secondary to service-connected removal of the left
testicle with epididymectomy.
The Veteran contends that his currently diagnosed erectile
dysfunction is related to his active duty service or
alternatively to his service-connected removal of the left
testicle with epididymectomy. As noted, the Veteran is currently
service connected for removal of the left testicle with
epididymectomy. The Veteran contends that he started suffering
from erectile dysfunction upon receipt of radiation treatments
for his prostate cancer. The Veteran and his representative
further contend that both his prostate cancer and erectile
dysfunction are the result of his active duty service and/or the
result of or aggravated by his service-connected removal of the
left testicle with epididymectomy. As noted above, the Veteran
was afforded a VA examination in December 2006 in which the
examiner opined that the Veteran's prostate cancer is not related
to his active duty service or his service-connected removal of
the left testicle with epididymectomy, but the opinion did not
address whether the Veteran's erectile dysfunction is related to
his active duty service and/or service-connected removal of the
left testicle with epididymectomy.
When VA undertakes to provide a VA examination or obtain a VA
opinion, it must ensure that the examination or opinion is
adequate. 38 C.F.R. § 3.159(c) (4); see also Barr v. Nicholson,
21 Vet. App. 303, 312 (2007). As previously stated, the Veteran
was afforded a VA examination in December 2006; however the Board
finds that the examination provided was not adequate with regard
to the issue of service connection for erectile dysfunction, to
include as secondary to service-connected removal of the left
testicle with epididymectomy, because it failed to provide an
opinion with regard to whether the Veteran's erectile dysfunction
is related to his active duty service and/or his service-
connected removal of the left testicle with epididymectomy. As
previously stated, the examination included a nexus opinion, but
only with regard to whether the Veteran's prostate cancer was
related to the Veteran's active duty service and/ or service-
connected removal of the left testicle with epididymectomy.
Therefore in compliance with Barr, the Board finds that is
necessary to remand the issue for another opinion that addresses
whether the Veteran's erectile dysfunction is related to his
active duty service and/or his service-connected removal of the
left testicle with epididymectomy.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2010).
Expedited handling is requested.)
1. The Veteran should be afforded an
appropriate VA opinion to determine the
etiology of his erectile dysfunction. All
indicated evaluations, studies, and tests
deemed necessary should be accomplished
and all findings reported in detail. The
claims file, to include a copy of this
remand must be made available to the
examiner for review, and the examination
report should reflect that such a review
was accomplished. The examiner should
address whether or not the Veteran's
erectile dysfunction is more likely than
not (i.e., probability greater than 50
percent), at least as likely as not (i.e.,
probability of 50 percent), or less likely
than not (i.e., probability less than 50
percent), etiologically related to his
military service, or proximately due to or
aggravated by his service-connected
removal of the left testicle with
epididymectomy. The examiner should
provide a thorough rationale for his or
her conclusions and confirm that the
claims file was available for review.
Please send the claims folder to the
examiner for review in conjunction
with the examination.
Note: The term "at least as likely as
not" as used above does not mean merely
within the realm of medical possibility,
but rather that the weight of medical
evidence both for and against a conclusion
is so evenly divided that it is as
medically sound to find in favor of
causation as it is to find against it.
The term "aggravated" in the above context
refers to a permanent worsening of the
underlying condition, as contrasted to
temporary or intermittent flare-ups of
symptomatology which resolve with return
to the baseline level of disability.
2. After any additional notification and/or
development that the RO deems necessary is
undertaken, the Veteran's claim should be
readjudicated. If any benefit sought on
appeal remains denied, the Veteran and his
representative should be provided with a
supplemental statement of the case (SSOC)
that contains notice of all relevant
actions taken, including a summary of the
evidence and applicable law and
regulations considered pertinent to the
issues. An appropriate period of time
should be allowed for response by the
Veteran and his representative.
Thereafter, the case should be returned to
the Board for further appellate
consideration, if in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs